Returning to the U.S. after being denied admission

QUESTION: My son is a 24 year-old Canadian citizen that was denied entry to the U.S. for overstaying his time.  He was allowed to withdraw his application for admission and sent back to Canada where he has remained for the last 4 months.  He has re-established residence, is employed and would like to visit his fiancé and infant daughter in the U.S.  He also has Lymphoblastic Lymphoma cancer for which he needs to receive post-chemo blood clinic tests from the hospital in the U.S. where he received the treatments.  He does not have any criminal record in any country.  Is there anything you can do for him?  Is there anything that can be done for him? 

REPLY: The first step is to determine whether your son accumulated any unlawful presence in the U.S., as that term is defined under the U.S. immigration law.  The next step is to review all of the facts and determine the best way to obtain his admission to the U.S. as a visitor.  It may be difficult for him to enter as a visitor because his fiancé and child are living in the U.S.  In cases like this, U.S. Customs and Border Protection (“CBP”) officials are concerned that the individual may be seeking entry as a visitor but with the actual intent of remaining in the U.S. permanently with his/her family members.  This presumption can be overcome.  We will usually assist our clients with the preparation of a package of documents demonstrating strong ties to Canada and his/her need to return to Canada following the visit. 

The need to obtain medical treatment in the U.S. is a permissible activity, which will be weighed by CBP officers in connection with the potential for immigrant intent.  In cases like this, we have assisted Canadian citizens with a request to CBP officials in Buffalo in advance of any application for admission to determine how CBP officials feel about the particular case and whether the applicant is likely to be admitted.  This is, however, assuming that the applicant does not require a waiver for unlawful presence.